It’s common during court proceedings for parenting arrangements that a child and/or parents’ health, psychology, education and criminal records will be subpoenaed by a party. If there is a reasonable expectation that an organisation has notes about a person that may assist your case, you can generally issue it with a subpoena for a copy of those notes (within limits set by the Court).
But once a record has been subpoenaed, can you restrict who gets to view the material which is produced?
A treating psychologist filed an objection to their notes being released to the parties in a recent matter before the Family Court of Australia. The psychologist had treated the child and both parents (though the mother had only attended one session) for approximately three years. The purpose of the treatment was to attempt to repair the relationship between the child and mother and provide support to all parties. The psychologist was concerned that release of the notes:
- threatened the therapeutic relationship between the child and psychologist due to it placing the child in an “emotionally vulnerable position and dissolving the trust” between them;
- would lead to the mother using the material against the child;
- would cause stress and trauma to the child in circumstances of current stability; and
- would likely lead to the child struggling to develop therapeutic relationships in the future.
In her reasoning to the Court, the psychologist reported that the mother allegedly had an inability to hold back in telephone contact with the child, leaving her with little confidence that the mother would not discuss the material produced by the psychologist with the child.
In court proceedings for parenting matters, the Court is required to consider the needs of the child and the impact that the conduct of the proceedings may have.
The Court had previously ordered that the child live with the father and the mother was seeking the return of the child to live with her. The child’s psychology records were therefore relevant to her case.
While confidentiality itself would not be enough to restrict access to a subpoena, the psychologist provided evidence to the Court of the potential impact on the child if the notes were released (i.e., that the mother would discuss it with the child). Providing evidence of the potential impact to the child is an important step in seeking to restrict access to material concerning the child.
In this case, the notes were found to be relevant to determining whether it was in the child’s best interest to be re-assessed to live with the mother. The records were therefore released. However, the mother’s use of the material was restricted to that of a therapist or potential family report writer only.
If this sounds like a similar situation to you, or you want to get advice regarding your family law matter, please contact our office for a confidential discussion.